Dube v. Likins

167 P.3d 93

216 Ariz. 406

Manu DUBE, Plaintiff/Appellant, v. Peter LIKINS and Jane Doe Likins, husband and wife; Richard C. Powell and Jane Doe Powell, husband and wife; Thomas J. Hixon and Jane Doe Hixon, husband and wife; and State of Arizona Board of Regents, Defendants/Appellees.

No. 2 CA-CV 2006-0176.

Court of Appeals of Arizona, Division 2, Department A.

June 28, 2007.

Supplemental Opinion on Denial of Reconsideration September 5, 2007.

Raven, Awerkamp & Clancy, P.C., by Don Awerkamp and Ivelisse Bonilla-Torrado, Tucson, Attorneys for Plaintiff/Appellant.

Terry Goddard, Arizona Attorney General, by Rebecca J. Herbst, Phoenix, Attorneys for Defendants/Appellees.

OPINION

HOWARD, Presiding Judge.

¶ 1 Appellant Manu Dube appeals from the trial court's judgment dismissing his complaint pursuant to Rule 12(b)(6), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, and granting judgment in favor of appellees Peter Likins, former President of the University of Arizona; Richard Powell, Vice President for Research and Graduate Studies; Thomas Hixon, Associate Vice President for Research and Graduate Studies; and the State of Arizona Board of Regents ("the University Officials"). Dube argues the trial court erred when it found his claims were untimely and that his allegations of defamation and tortious interference with a business expectancy failed to state a claim upon which relief can be granted. He also argues that even if his complaint was insufficient he should have been afforded the opportunity to amend it. We affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

Background

¶ 2 When reviewing the trial court's grant of a motion to dismiss a complaint for failure to state a claim, "`we must take the alleged facts as true.'" Riddle v. Ariz. Oncology Servs., Inc., 186 Ariz. 464, 465, 924 P.2d 468, 469 (App.1996), quoting Petolicchio v. Santa Cruz County Fair & Rodeo Ass'n, 177 Ariz. 256, 258, 866 P.2d 1342, 1344 (1994). In 1998, Dube transferred to the University of Arizona as a post-graduate student. Dr. Chandra Desai was Dube's advisor for his dissertation work. In October 2002, Dube complained to the University that Desai had acted improperly and requested a change in advisor. The University "investigated and evaluated Dube's allegations" and, "[a]fter analyzing the information provided by Dube," it "removed Desai from the Ph.D. committee that would evaluate Dube's dissertation work and replaced [him] with another faculty member." Dube obtained his doctoral degree in May 2004.

¶ 3 In September 2004, Dube sued Desai and C. Desai, Inc., alleging Desai had tortiously interfered with him "obtaining his Ph.D. at the University of Arizona and with his opportunities to obtain employment." In May or June 2005, in the course of discovery, Dube obtained documents from the University of Arizona. He claims the documents "revealed that various University of Arizona administrators had improperly assisted Desai in his interference with Dube's efforts to obtain his Ph.D. and pursue his career."

¶ 4 On February 23, 2006, Dube moved to amend his complaint, which the trial court granted, to assert a claim of tortious interference against the University Officials and defamation claims against Likins. Dube filed his amended complaint on March 27, 2006. The University Officials then moved to dismiss the complaint on the ground that both claims were barred by the statute of limitations and failed as a matter of law. The trial court granted the motion and entered final judgment against Dube and in favor of the University Officials.

Tortious Interference With Business Expectancy

¶ 5 Dube first argues that the trial court erred when it dismissed his claim for tortious interference with a business expectancy against the University Officials as untimely. He contends he did not know the facts underlying this claim until he received certain documents in discovery during this litigation. We review de novo a trial court's dismissal of a complaint pursuant to Rule 12(b)(6), Ariz. R. Civ. P., based on its application of a statute of limitations. Andrews ex rel. Woodard v. Eddie's Place, Inc., 199 Ariz. 240, ¶ 1, 16 P.3d 801, 801-02 (App.2000).

¶ 6 The trial court determined that "many of the claims asserted against [the University Officials were] based upon facts that were known to [Dube] when he filed his first [c]omplaint [on] September 8, 2004, including his claim regarding incorrect information provided to the [Immigration and Naturalization Service (INS)] from 1998 to 2002." Therefore, the court concluded, the discovery rule did not extend the time for filing the amended complaint, and the claim was untimely.

¶ 7 Under A.R.S. § 12-821, "[a]ll actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward." Accrual for causes of action under § 12-821 is statutorily defined as "when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage."¹ A.R.S. § 12-821.01(B); see also Long v. City of Glendale, 208 Ariz. 319, ¶ 9, 93 P.3d 519, 525 (App.2004). To determine when a cause of action accrues, an analysis of the elements of tortious interference with a business expectancy is necessary. See Glaze v. Larsen, 207 Ariz. 26, ¶ 10, 83 P.3d 26, 29 (2004) ("The determination of when a cause of action accrues requires an analysis of the elements of the claim presented.").

¶ 8 A plaintiff asserting a claim for tortious interference must allege "`the existence of a valid contractual relationship or business expectancy; the interferer's knowledge of the relationship or expectancy; intentional interference inducing or causing a breach or termination of the relationship or expectancy; and resultant damage to the party whose relationship or expectancy has been disrupted.'" Miller v. Hehlen, 209 Ariz. 462, ¶ 32, 104 P.3d 193, 202 (App.2005), quoting Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 184 Ariz. 419, 427, 909 P.2d 486, 494 (App.1995). Accordingly, a cause of action for tortious interference accrues when the plaintiff knew or reasonably should have known of the intentional interference with the plaintiff's business expectancy, resulting in its termination; and the plaintiff realized he or she was damaged by that termination. See id.; see also A.R.S. § 12-821.01(B); Glaze, 207 Ariz. 26, ¶ 10, 83 P.3d at 29. And "[w]hen discovery occurs and a cause of action accrues are usually and necessarily questions of fact for the jury." Doe v. Roe, 191 Ariz. 313, ¶ 32, 955 P.2d 951, 961 (1998).

¶ 9 Dube claims that while he was a student at the University from 1998 through 2004, the University Officials reported incorrect information to the INS, failed to share the findings of their investigation of Desai with him, misled him into believing that the investigation was ongoing, and ignored their obligations to conduct an adequate investigation. Dube claims the University Officials' conduct resulted in a delay in obtaining his doctoral degree and his inability to find employment while in school and also after graduation in May 2004. Finally, Dube alleges he was unaware of the University Officials' actions until after discovery began in his case against Desai.

¶ 10 Dube specifically stated in his original complaint, filed in September 2004, that the University had reported incorrect information to the INS. And some University employees were necessarily involved in reporting that information. Because he filed his amended complaint in March 2006, more than one year after his initial complaint, this claim is barred by the statute of limitations. But this claim is discrete from Dube's other claims of tortious interference.

¶ 11 Given the nature of the remaining allegations of tortious interference with a business expectancy, Dube had no reason to know of the University Officials' alleged involvement or realize that any of his claimed damages were attributable to anyone other than Desai. Based solely on Dube's allegations, the cause of action did not accrue until May 2005, when Dube learned of the University Officials' involvement. And Dube filed an amended complaint in March 2006, within the one-year limitation period set forth in § 12-821. Because Dube's allegations must be taken as true, see Riddle, 186 Ariz. at 465, 924 P.2d at 469, it was error to dismiss the remainder of Dube's tortious interference claim as untimely. See Doe, 191 Ariz. 313, ¶ 32, 955 P.2d at 961.

¶ 12 Nevertheless, the University Officials claim that Dube had an obligation to investigate his claim in a timely fashion. But whether Dube reasonably investigated and whether a reasonable investigation would have revealed the alleged tortious acts is not apparent on the face of the complaint and gives rise to factual questions that would need to be explored in greater detail than contemplated under Rule 12(b)(6) before they are resolved.

¶ 13 Dube next argues that the trial court erred when it found that his allegation of tortious interference with a business expectancy failed to state a claim upon which relief can be granted. The University Officials, on the other hand, claim Dube failed to properly allege that they had tortiously interfered with Dube's alleged business expectancy or that he even had one. When reviewing a trial court's dismissal of a complaint for failure to state a claim, we must affirm the dismissal when the allegations of the complaint, which are assumed to be true, do not entitle the plaintiff to any relief. See Savard v. Selby, 19 Ariz.App. 514, 515, 508 P.2d 773, 774 (1973). "[B]ecause Arizona is a notice pleading state, a complaint need only have `a statement of the ground upon which the court's jurisdiction depends, a statement of the claim showing that the pleader is entitled to relief[,...